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EXHIBIT 4.2
SERVICE EXPERTS, INC.
and
SUNTRUST BANK, NASHVILLE, N.A.
as Trustee
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First Supplemental Indenture
Dated as of February 2, 1999
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Supplement to Indenture dated as of February 2, 1999
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FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE, dated as of February 2, 1999, between
Service Experts, Inc., a Delaware corporation (hereinafter called the
"Company"), having its principal xxxxxx xx Xxx Xxxxxxxx Xxxxx, Xxxxx 000,
Xxxxxxxxx, Xxxxxxxxx 00000, and SunTrust Bank, Nashville, N.A., a national
banking association organized under the laws of the United States of America
(hereafter called the "Trustee"), having a Corporate Trust Office at 000 Xxxxxx
Xxxxxx, 0xx Xxxxx, SunTrust Financial Center, Xxxxxxxxx, Xxxxxxxxx 00000, as
Trustee under the Indenture (as hereinafter defined).
RECITALS
WHEREAS, the Company and the Trustee have as of February 2,
1999 entered into an Indenture (hereinafter called the "Indenture"), providing
for the issuance by the Company from time to time of its subordinated debt
securities evidencing its unsecured and subordinated indebtedness (the
"Securities");
WHEREAS, no Securities have been issued under the Indenture;
WHEREAS, the Company desires to issue a new series of
subordinated debt securities under the Indenture, the "Notes" (as defined
below), and has duly authorized the creation of the Notes and the execution and
delivery of this First Supplemental Indenture to modify the Indenture and
provide certain additional provisions as hereinafter described; and
WHEREAS, the Company and the Trustee deem it advisable to
enter into this First Supplemental Indenture for the purposes of providing for
the rights, obligations and duties of the Trustee with respect to the Notes and
to set forth certain specific provisions with respect thereto;
NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises, the Company and the
Trustee covenant and agree, for the equal and proportionate benefit of all
Holders of the Notes, as follows:
ARTICLE ONE
CREATION OF THE NOTES
Section 1.01. Pursuant to the terms hereof and the Indenture,
the Company hereby creates a series of its Notes known as the "Subordinated
Convertible Notes," which series of Notes shall be deemed Securities for all
purposes of the Indenture.
Section 1.02. The definitive form of the Notes shall be
substantially in the form set forth in Exhibit A attached hereto, which is
incorporated herein and made part hereof. The Notes shall bear interest, be
payable and have such other terms as are stated in the form of definitive Note
or in the Indenture, as supplemented by this First
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Supplemental Indenture. The Notes shall be convertible into shares of the Common
Stock of the Company under the terms and conditions stated in the form of
definitive Note.
Section 1.03. The Notes shall not exceed $50,000,000 in
aggregate principal amount, and may, upon the execution and delivery of this
First Supplemental Indenture or from time to time thereafter, be executed by the
Company and delivered to the Trustee for authentication, and the Trustee shall
thereupon authenticate and deliver said Notes to or upon the written order of
the Company, signed by its Chairman, President or a Vice President and by its
Treasurer or an Assistant Treasurer or its Secretary or an Assistant Secretary,
without further action by the Company.
Section 1.04. The Trustee's certificate of authentication to
be borne by the Notes shall be substantially of the tenor and purport as
provided in the Indenture.
ARTICLE TWO
APPOINTMENT OF THE TRUSTEE FOR THE NOTES
Section 2.01. Pursuant and subject to the Indenture, the
Company and the Trustee hereby constitute the Trustee as trustee to act on
behalf of the Holders of the Notes, effective upon execution and delivery of
this First Supplemental Indenture. By execution, acknowledgment and delivery of
this First Supplemental Indenture, the Trustee hereby accepts appointment as
trustee with respect to the Notes, and agrees to perform such trusts upon the
terms and conditions set forth in the Indenture and in this First Supplemental
Indenture.
Section 2.02. Any rights, powers, duties and obligations by
any provisions of the Indenture conferred or imposed upon the Trustee shall,
insofar as permitted by law, be conferred or imposed upon and exercised or
performed by the Trustee with respect to the Notes.
ARTICLE THREE
EVENTS OF DEFAULT
Pursuant to Section 501 of the Indenture, so long as any of
the Notes are Outstanding, the following events shall replace Sections 501(1),
501(2), 501(7) and 501(8), respectively, of the Indenture as an Event of Default
with respect to any series of the Notes:
501(1) default in the payment of any interest upon or any
Additional Amounts payable in respect of any Security of or within that series
or of any coupon appertaining thereto, when such interest, Additional Amounts or
coupon becomes due and payable, and continuance of such default for a period of
30 days after written notice of default shall have been received by the Company
from the holder of the Note.
501(2) default in the payment of the principal of (or premium
or Make-Whole Amount, if any, on) any Security of that series when it becomes
due and payable at
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is Maturity and continuance of such default for a period of 30 days after
written notice of default shall have been received by the Company from the
holder of the Note.
501(7) if the Company shall make an assignment for the benefit
of creditors, or shall admit in writing its inability to pay its debts as they
become due, or shall file a voluntary petition in bankruptcy, or shall be
adjudicated as bankrupt or insolvent, or shall file any petition or answer
seeking for itself any reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under any present or future statute,
law or regulation, or shall file any answer admitting or not contesting the
material allegations of a petition filed against the Company in any such
proceeding, or shall seek or consent to or acquiesce in the appointment of any
custodian, trustee, receiver or liquidator of the Company or such subsidiary or
of all or any substantial part of the properties of the Company or such
subsidiary, or if the Company or its directors or majority shareholders shall
take any action looking to the dissolution or liquidation of the Company; or
501(8) if, within sixty (60) days after the commencement of an
involuntary bankruptcy proceeding or other action against the Company seeking
any reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief under any present or future statute, law or
regulation, such action shall not have been dismissed or all orders or
proceedings thereunder affecting the operations or the business of the Company
stayed, or if the stay of any such order or proceeding shall thereafter be set
aside, or if, within sixty (60) days after the appointment without the consent
or acquiescence of the Company or any custodian, trustee, receiver or liquidator
of the Company or of all or any substantial part of the properties of the
Company, such appointments shall not have been vacated;
then, and in any such Event of Default, the holder thereof may at any time
(unless all defaults shall theretofore have been remedied) at its option, by
written notice to the Company, declare the Note to be due and payable, whereupon
the Note shall forthwith mature and become due and payable, together with
interest accrued and unpaid hereon, without presentment, demand, protest or
notice, all of which are hereby waived.
ARTICLE FOUR
MISCELLANEOUS
Section 4.01. Each and every term and condition contained in
the Indenture shall apply to this First Supplemental Indenture with the same
force and effect as if the same were herein set forth in full, with such
omissions, variations and modifications thereof as may be appropriate to make
the same conform to this First Supplemental Indenture. As supplemented by this
First Supplemental Indenture, the Indenture shall be read, taken and construed
as one and the same instrument; provided, however, that the rights, duties and
obligations of the Trustee in this First Supplemental Indenture shall be limited
to those matters expressly relating to the Notes.
Section 4.02. Nothing contained in this First Supplemental
Indenture shall or shall be construed to confer upon any person other than a
Holder of the Notes, the
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Company and the Trustee any right or interest to avail itself or himself, as the
case may be, of any benefit under any provision of the Indenture or this First
Supplemental Indenture.
Section 4.03. All capitalized terms which are used herein and
not otherwise defined herein are defined in the Indenture and are used herein
with the same meanings as in the Indenture.
Section 4.04. This First Supplemental Indenture shall be
effective as of the date first above written and upon the execution and delivery
hereof by each of the parties hereto.
Section 4.05. This First Supplemental Indenture shall be
governed by, and construed in accordance with, the laws of the State of
Tennessee.
Section 4.06. This First Supplemental Indenture may be
executed in any number of counterparts, each of which so executed shall be
deemed to be an original, but all such counterparts shall together constitute
but one and the same instrument.
Section 4.07. This First Supplemental Indenture shall cease to
be of further effect upon compliance with Section 401 of the Indenture with
respect to the Notes created hereby.
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IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed by their respective officers hereunto
duly authorized, all as of the day and year first above written.
SERVICE EXPERTS, INC.
By: /s/ Xxxx X. Xxxxxxxx Dated: February 2, 1999
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Name: Xxxx Xxxxxxxx
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Title: Chief Executive Officer
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SUNTRUST BANK, NASHVILLE, N.A.,
as Trustee
By: /s/ Xxxx XxXxxxxxx Dated: February 2, 1999
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Name: Xxxx XxXxxxxxx
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Title: Assistant Vice President
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ACKNOWLEDGMENT
STATE OF TENNESSEE
) ss:
COUNTY OF DAVIDSON
On the 2nd day of February, 1999, before me personally came
Xxxx Xxxxxxxx, to me known, who, being by me duly sworn, did depose and say that
he is the Chief Executive Officer of SERVICE EXPERTS, INC., one of the parties
described in and which executed the foregoing instrument, and that he signed his
name thereto by authority of the Board of Directors.
[Notarial Seal]
/s/ Xxxxx Xxxxx Xxxxxx
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Notary Public
Commission Expires 0-00-00
XXXXX XX XXXXXXXXX
) ss:
COUNTY OF DAVIDSON
On the 2nd day of February, 1999, before me personally came
Xxxx XxXxxxxxx, to me known, who, being by me duly sworn, did depose and say
that he/she is a Assistant Vice President of SunTrust Bank, Nashville, N.A., one
of the parties described in and which executed the foregoing instrument, and
that he/she signed his/her name thereto by authority of the Board of Directors.
[Notarial Seal]
/s/ Xxxxxx X. Xxxxxxx
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Notary Public
Commission Expires 7-24-99
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